Rith Kim v. State Farm Mutual Automobile Insurance Company, 2016 ONFSCDRS 316

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2016 ONFSCDRS 316

FSCO A14-003179

BETWEEN:

RITH KIM

Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before: Arbitrator Kimberly Parish

Heard: In person at ADR Chambers on November 1, 2016

Appearances: Mr. Rith Kim did not participate Mr. Don Han Dennis Yang did not participate for Mr. Rith Kim Ms. Niki Giovanoglou participated for State Farm Mutual Automobile Insurance Company

Issues:

The Applicant, Mr. Rith Kim, was injured in a motor vehicle accident on October 18, 2012 and sought accident benefits from State Farm Mutual Automobile Insurance Company (“State Farm”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Mr. Kim, through his representative, applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c. I.8, as amended.

The issues in this Hearing are:

Should Mr. Kim’s Application for Arbitration be dismissed?
Is Mr. Kim liable to pay State Farm’s expenses with respect to this Arbitration?

Result:

Mr. Kim’s Application for Arbitration is dismissed.
Mr. Kim shall pay forthwith, State Farm’s expenses for this Arbitration in the amount of $750.00, inclusive of HST.

EVIDENCE AND ANALYSIS:

Chronology

A Pre-Hearing discussion in this case was held on September 30, 2016 at Noon, at the offices of ADR Chambers, at which Mr. Kim and his legal representative, Mr. Don Han Dennis Yang, failed to appear.

On September 30, 2016, I sent a letter to Mr. Kim at his last known address to advise him of the missed Pre-Hearing discussion. A copy of the letter was also sent to the office of his legal counsel, Sunmark Law. The letter provided Mr. Kim with an Attendance Notice, setting an in person date of November 1, 2016 from 1:00 p.m. to 2:00 p.m., to hear the issues identified in the Application for Arbitration. The letters also advised him that should he not contact our office or participate in any further proceedings, I would dismiss his Application for Arbitration and consider State Farm’s request for expenses.

The Dismissal

For the reasons that follow, Mr. Kim’s Application for Arbitration is dismissed.

As of November 1, 2016, I was unable to contact Mr. Kim, he had yet to contact his legal representative or ADR Chambers as requested, and had not participated in any of the Arbitration proceedings.

I am satisfied that Mr. Kim was given notice of all of the proceedings related to his Application for Arbitration at his last known address.

Pursuant to Rule 37.7 of the Dispute Resolution Practice Code, the Arbitration Hearing proceeded in his absence.

Mr. Kim bears the onus of proving entitlement to the claimed benefits. Since he did not appear at the Hearing and no evidence was presented to support his claims, this Application for Arbitration is dismissed.

EXPENSES:

State Farm requested expenses in the amount of $750.00, inclusive of HST, for its costs associated with these proceedings.

Mr. Kim shall pay forthwith, State Farm’s expenses for this Arbitration in the amount of $750.00, inclusive of HST.

November 28, 2016

Kimberly Parish Arbitrator

Date